Justice for All

by Jim Newton

  As Choper analyzed the case, he was troubled: He sympathized with Boynton, but Choper could find no legal basis for the Court to rule on Boynton’s behalf. The restaurant was not owned by the bus company and thus was a private entity, beyond the reach of the ban on racial discrimination in public transportation. Reluctantly, Choper recommended to Warren that the Court dismiss the case—in legal terms, as “improvidently granted.” Another case will come along, he told Warren in a memo, in which the record will be better.119 After reading Choper’s memo, Warren called him down and confessed that he had two problems with it. The first was that Boynton was a law student and the conviction, even for such a trivial offense, might keep him from becoming a lawyer. That offended Warren’s sense of fairness. Moreover, Warren acknowledged that another case might come along, but added, “I may not be here.” Given that, Warren preferred to keep searching for a way to overturn Boynton’s conviction. Eventually, Black found it in an argument not raised by Boynton’s lawyers—no less than Thurgood Marshall and others—at the Supreme Court. While conceding that the restaurant was privately owned, Black noted that the owner had acknowledged that it primarily relied on bus passengers for its business. The restaurant held a lease with the bus company and was located inside the bus company’s terminal in order to service the bus company’s passengers. All that added up to such a strong relationship to the travel of interstate passengers that the restaurant was treated as part of commerce and Boynton “had a federal right to remain in the white portion of the restaurant.”120 Boynton’s conviction was overturned, and his law career was uninterrupted. Warren joined the decision with satisfaction and relief, his underlying belief in fairness upheld.121

  Nineteen sixty-one thus opened for Warren fresh. His enemies were vanquished—Nixon and Eisenhower were gone, the Court was back in his hand. America preened with excitement over the dashing young couple preparing to move into the White House. On Inauguration Day, Warren led the justices across the street to take their place at the swearing in. Beneath them lay a blanket of newly fallen snow, but the day was clear and sunny. Robert Frost, the great poet of New England and America, rose to read a poem he had written for the occasion, but the glare of the snow and sun was too much for his aging eyes. After stumbling with it briefly, he abandoned it and instead recited from memory a much older work, “The Gift Outright”:

  The land was ours before we were the land’s.

  She was our land more than a hundred years

  Before we were her people. She was ours

  In Massachusetts, in Virginia.

  But we were England’s, still colonials,

  Possessing what we still were unpossessed by,

  Possessed by what we now no more possessed.

  Something we were withholding made us weak.

  Until we found out that it was ourselves

  We were withholding from our land of living,

  And forthwith found salvation in surrender.

  Such as we were we gave ourselves outright

  (The deed of gift was many deeds of war)

  To the land vaguely realizing westward,

  But still unstoried, artless, unenhanced,

  Such as she was, such as she would become.122

  After reciting that final line, Frost amended it by one word: “Here, for this occasion,” he said, “let me change that to ‘what she will become.”123 Warren sat in his chair, just an arm’s length away while America’s great poet, eyes watering in the sun, recited those American lines, infused with the special optimism of that January day. Warren, whose college years gave him poetry but whose lyricism would never match that of those he admired, drank in the poet’s lines from the dais, the crowd gazing upward in silent apprehension, pulling for Frost, swimming in his words. Then Frost sat and Warren stood. Behind the chief justice, Eisenhower glowered in a dark coat and a long white scarf wrapped around his neck against the cold. Facing Warren directly was the new president. Behind Kennedy, Nixon gamely smiled. The chief justice guided Kennedy’s hand to the Bible between them. Speaking in his gravelly voice, bareheaded in the cold, somber in his unadorned robes, Earl Warren administered the oath of office to the new president of the United States. Kennedy took it in strong and confident voice and addressed the nation as its president for the first time.

  Kennedy spoke of the simple patriotism and service that always animated Warren. He heralded renewal and change, rejected his election as a victory of party—just as Warren had refused to claim his governorship as a prize of partisanship—but rather trumpeted it as a “celebration of freedom.” Invoking the Declaration of Independence—the Declaration whose values Warren had imported into the Constitution—Kennedy reminded the nation of the “revolutionary belief” that “the rights of man come not from the generosity of the state but from the hand of God.” In his most memorable passage, Kennedy raised his voice to a near-shout and proclaimed, “And so, my fellow Americans, ask not what your country can do for you. Ask what you can do for your country. My fellow citizens of the world, ask not what America will do for you, but what together we can do for the freedom of man.”

  Kennedy concluded on a stirring note. “With a good conscience our only sure reward, with history the final judge of our deeds, let us go forth to lead the land we love, asking His blessing and His help but knowing that here on Earth, God’s work must truly be our own.”

  With that, Kennedy smiled and sat down. For Warren, the moment was splendid indeed. The day was clear, the air crisp, the snow fresh. Warren’s family was healthy and growing. For two long years, his command of his Court had been tested, and he had lost his share of fights. But as 1961 opened, it was Warren on the dais with Kennedy and Johnson, with Frost. He stood face to face with America’s young president and just a few feet away from his stylish wife, swearing in a new era to an eager nation. The prose of Eisenhower had given way to the poetry of Kennedy. What promise, what destiny, lay atop that snow-covered land on that January morning in 1961.

  Chapter 21

  KENNEDY, KING, AND A NEW ERA

  Although [it is] not possible for all of us to be your clerks, in a very real sense we are all your students.

  JOHN F. KENNEDY TO EARL WARREN1

  EARL WARREN was twenty-six years older than John Kennedy, old enough to be his father. And though Kennedy was older than Warren’s own children, there was an element of paternalism in Warren’s attraction to the young president and his wife. Similarly, Kennedy approached Warren with palpable deference, partly in acknowledgment of Warren’s position but also partly with the refined instincts of a younger man in the presence of a distinguished elder. John Kennedy was the first American president born in the twentieth century; Earl Warren was the last chief justice born in the nineteenth. Earl Warren served peripherally in the first of the twentieth century’s great wars; Kennedy fought with heroism in the second. Both were tough on foes, and they happened to share a common adversary: John Kennedy shook his head in amazement when the Republican Party missed its chance at Warren. “How can you hope for anything from them?” Jack muttered to Jackie one night in frustration. “They nominated Dewey and Nixon when they could have had Earl Warren.” Warren watched with glee as Kennedy dismantled Nixon in 1960.2 Together, Warren and Kennedy would lead America from the residue of its eighteenth-century moral backwardness and into the fullness of its maturity. Kennedy would not live to see the journey completed, but he would provide Warren with the grace, the courage, and the friendship to see that it would, in time, be fulfilled.

  On January 25, four days after he assumed the presidency, Kennedy initiated their correspondence, writing to thank Warren for administering the oath earlier that week. “I need hardly tell you that I am delighted that you are presiding over the Court during my administration,” Kennedy wrote. “I wish you all continued success in the days that lie ahead.”3 Warren responded in kind, his note simple and sincere, stripped of all the edge that occasionally crept into his correspondence with Eisenhower. After acknow
ledging Kennedy’s note to him, Warren wished the new president and his administration “happy sailing on the course which you so thrillingly outlined to the American people at the Inauguration.”4

  That cordial exchange was followed by an even more personal overture. Warren turned seventy on March 19, 1961. To mark the occasion, a group of current and former clerks arranged a surprise party that week, and Kennedy arrived unannounced to pay his respects. Warren, sensitive as always to the nuances of protocol, was touched by the gesture, which confirmed for him his initial enthusiasm for the president. “He had great affection and admiration for Kennedy,” recalled Dennis Flannery, who served as a Warren clerk in the mid -1960s.5 “Kennedy,” agreed another clerk, Kenneth Ziffren, “he just loved Kennedy.”6 The sentiment ran both ways. Pierre Salinger, one of Kennedy’s trusted intimates, said both men confided in him their regard for the other. “The Chief Justice expressed his pleasure at the way President Kennedy had taken hold of his duties. He liked Kennedy’s vitality and imagination.” And as for Kennedy, he “had a deep respect for the Chief Justice, both as Chief Justice and as a man. He was always meticulous in his dealings with him.”7

  The first of its Kennedy-era landmark cases came to the Court less than two weeks after Warren’s birthday. Dollree Mapp and her daughter were living upstairs in a two-story Cleveland home in 1957 when police officers received a tip that a bombing fugitive was holed up in the house. On May 23, officers arrived at the home, knocked, and asked to be allowed to look around. Mapp made them wait while she called her lawyer, then told the officers she would not permit them to enter without a warrant. A few hours later, they came again to the door and this time forced their way inside, breaking down a door in the process. Mapp demanded to see a warrant. When an officer handed her a piece of paper, she shoved it in her bra. The police forcibly “recovered” the paper and roughly placed a yelling Mapp in handcuffs. Her lawyer, who had arrived amid the commotion, was denied the right to speak with her. The officers never did find their suspect or anything connecting Mapp to him; they did find a trunk in the house, however, and it contained some lurid photographs and pamphlets. Mapp said the trunk belonged to a former boarder, but Ohio law proscribed possession of “an obscene, lewd or lascivious book,” and since material roughly fitting that description was found in her house, Mapp was arrested, charged, tried, and convicted. She was sentenced to seven years in prison.8

  Had Mapp been tried in federal court, the evidence seized—without a warrant, while her lawyer was held at bay—would have been excluded from her trial, and Mapp would have gone free. But the Supreme Court had never held that a defendant in state court was entitled to the same protection against search and seizure as applied in federal proceedings. Warren himself had refused to extend the Fourth Amendment’s protection against “unreasonable searches and seizures” to the states, ruling in the 1954 Irvine case that the police there had behaved atrociously but that that was not a reason to let the bookmaker go free. Dollree Mapp was to receive the benefit of Warren’s hard lesson in Irvine. Tired of inaction by others, Warren acted himself.

  Soon after the initial argument, Warren led the conference on Mapp, and assigned the opinion to Clark, who had grudgingly concurred in Irvine but had warned of precisely the result that had now come to pass. In the absence of a rule limiting the introduction of evidence seized by overzealous police, misconduct by police would surely continue, Clark noted in 1954: “Unpredictable reversals on dissimilar fact situations are not likely to curb the zeal of those police and prosecutors who may be intent on racking up a high percentage of successful prosecutions.”9 Proven right by time, Clark now drafted for a majority that included Warren and Brennan, with Douglas and Black joining in the result, though for varying reasons—Black found his recourse in the idea that the search violated a combination of search-and-seizure rules as well as a defendant’s Fifth Amendment right, technically the right not to be forced to testify against oneself but here construed by Black as a broader right not to be forced to supply incriminating evidence against oneself. Stewart provided a sixth vote to free Mapp, but he explicitly refused to join the majority’s constitutional conclusions. Harlan did his best to talk Clark out of a broad ruling, suggesting that the Court free Mapp by finding that Ohio’s law against mere possession of obscene material went too far toward state imposition of “thought control.”10 But Clark wanted more and got it.

  The result was hardly elegant—a divided Court articulating a grab bag of principles. But Mapp made bold new law almost despite itself, and it lightened the stain that the early, judicially immature Warren had allowed his Court to create in Irvine. Over the objections of Frankfurter, Harlan, and Whittaker, Mapp told police that they would comply with the Constitution or their suspects would go free. “There is no war,” Clark wrote, “between the Constitution and common sense.”11 Certainly Clark would get no argument there from Warren.

  Mapp represented the first of the major Warren Court forays into criminal justice, and it overturned the practices of half the states, which until Mapp had permitted the introduction of evidence regardless of the police conduct in obtaining it. Moreover, as Lucas Powe points out, Mapp was a pure criminal justice case, not an effort to extend or solidify the Court’s desegregation opinions. As such, it represented new ground for the Court as it entered the 1960s.12 And yet Mapp was mere portent. Its bevy of concurrences, dissents, and memoranda for a time cloaked one aspect of its significance. Beneath the changes it wrought in the law itself was a lurking message: Warren had control of his Court again; restraint had run its course.

  FOR THOSE who feared and detested Warren’s work, the resumption of his control posed a threat to their values, and they moved in response. In 1961, the John Birch Society launched its campaign to drive Warren from the Court.13 Within months, the billboards calling for Warren’s impeachment began to sprout up along American roads and highways, many to remain there until his retirement in 1969. The Birch Society’s billboards became a ubiquitous and literal part of the American landscape, and remain a landmark of the imagination in history’s depiction of Warren and his Court.

  The Birch Society was led by the single-minded Robert Welch, a onetime candy-maker who concluded that America was rife with Communists bent on selling out the nation to the Soviets—even Eisenhower was suspect in the eyes of the Birch Society. 14 Welch founded the Society at a December 1958 meeting in Indianapolis, and within two years, its “cells” had formed across the United States. Those cells cobbled together a motley coalition of serious conservatives, many of them wealthy, and right-wing misfits—“a collection of wealthy businessmen, retired military officers and little, old ladies in tennis shoes,” as California attorney general and Warren friend Stanley Mosk once described them.15 After two years of aimless anti-Communism, the Society settled on Warren as its enemy, and with him as its target, found its voice and place in American life. The campaign was unique in the annals of Court criticism, and it served both to heighten attention on the Court as well as to amplify the significance and coffers of the Society.

  “We are aware that the whole Supreme Court is a nest of socialists and worse,” the Society argued in its bulletin launching the effort. “We have nothing but contempt, which we believe to be completely justified by the records, for a number of its justices.” Of Warren specifically, the Society noted, “We are demanding that Warren be impeached by the House, because we are convinced that the evidence of his abuse of his high office is amply sufficient to warrant his arraignment.”16

  In listing its grounds for impeachment, the Society started with Brown v. Board of Education, which it labeled “the most brazen and flagrant usurpation of power” in the history of American jurisprudence. It also cited the Nelson case overturning state anti-Communist laws, and the Sweezy opinion curbing the New Hampshire attorney general’s investigation into alleged subversives there. There were, the Society added, too many offenses to list them all. Members were urged to write their congressman, to
write letters to the editor, to talk with friends and neighbors, pass resolutions, put up stickers (“This is a Republic,” the stickers stated), form organizations, and be inventive in crafting ways to challenge the chief justice. “The future of your country—and of your children—is at stake,” the bulletin asserted. It bore Welch’s signature.17

  The campaign was good for the Society. In 1961, when the “Impeach Earl Warren” campaign began, the Society reported $534,241 in income; two years later, it had nearly doubled, to $1,043,656.18 That money paid for a visible, sustained attack on the Supreme Court and its chief. By 1963, there were thirty-five coordinators of the impeachment movement, being paid $8,000 a week, while forty-one home office employees of the Society were earning $3,000 a week. The Society reported that its campaign was doubling every five to six months.19

  The manifestations of that effort suddenly flooded the American landscape. At the Indy 500, a huge sign greeted visitors to the speedway in the mid-1960s: “Save Our Republic. Impeach Earl Warren!” The same message or variants of it greeted civil rights marchers in Selma and motorists on Highway 27 outside New Orleans; on federal Route 22 near Allentown, Pennsylvania; and on state highways throughout Florida, Alabama, and Georgia.20 Warren impeachment packets were available in Massachusetts, while a bedsheet hung near Montecito, California, proclaimed that America had fallen under the cruel dictatorship of “Communist Warren.” “If we do not kill him, he will enslave all of us,” it read .21 In the predawn of September 17, 1962, one protester brought the campaign to Capitol Hill, tacking up twenty-eight posters on trees around the House and Senate office buildings and the Lincoln Memorial. “Be a super patriot,” they urged. “Impeach Earl Warren.”22